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Spina bifida patient wins legal case against GP for ‘not advising folic acid supplement’


spina bifida


A spina bifida patient has successfully sued her mother’s GP in a ground-breaking legal case, arguing that if her mother had been given adequate advice, she would never have been conceived or born.

Evie Toombes, 20, is a showjumper who was born with a defect causing spinal cord tethering, meaning she has restricted mobility and is doubly incontinent.

London High Court Judge Rosalind Coe ruled yesterday (1 December) that Dr Philip Mitchell, a GP partner at Hawthorn Medical Practice in Skegness at the time, was liable for damages from Ms Toombe’s ‘personal injury arising from her disability’ due to his inadequate advice to her mother on folic acid supplements.

The law forbids children born with disabilities from pursuing ‘wrongful life’ cases, arguing that they should never have been born, but a High Court judge ruled last year that Ms Toombe’s case could go ahead as it fell under ‘wrongful conception’ and was consistent with the Congenital Disabilities (Civil Liability) Act 1976.

Mrs Justice Lambert approved the case on the grounds that there had been ‘a wrongful act (negligent advice) leading to an occurrence (sexual intercourse in a folic acid deficient state) which resulted in a child born with disabilities due to that deficiency of folic acid’.

The amount of the damages will be determined at a later hearing but would be ‘into the millions’ as it must cover the lifetime costs of extensive care, the Times reported.

Barrister Susan Rodway reflected that the landmark ruling means ‘a healthcare professional can now be found liable for negligent pre-conception advice which results in the birth of a child with a serious health condition’.

Moore Barlow solicitor Tim Spring, from the firm which represented Ms Toombes, said it was an ‘unusual’ case and ‘requir[ed] the law to be clarified’.

In February 2001, Mrs Caroline Toombes, Ms Toombe’s mother, attended a ‘pre-conception consultation’ to ask Dr Mitchell’s advice on what she should do before attempting to fall pregnant.

As it was over 20 years ago, Dr Mitchell had no recollection of the appointment and had to rely on his ‘usual standard practice’ and GP note, which read: ‘Preconception counselling. adv. Folate if desired discussed’.

In his statement, Dr Mitchell said at the time, his normal advice to patients was to tell them that ‘relevant guidance recommends folic acid supplementation of 400 µg daily for women preparing for pregnancy and during the first trimester’.

However, the court accepted Mrs Toombes’ assertion that Dr Mitchell did not tell her about the relationship between folic acid supplements and the prevention of neural tube defects, such as spina bifida.

She claimed he said that folic acid supplements were ‘not necessary’ if she maintained a good diet. 

The Court found that Mr Mitchell did not give Mrs Toombes enough advice, and that if the advice had been adequate, she would have taken folic acid supplements earlier and delayed conception.

In her approved judgement, Judge Coe wrote that ‘a later conception would have been of a normal healthy individual’.

Clyde & Co, the law firm which represented Dr Mitchell, said the ruling was ‘a reminder to medical practitioners of the need to take clear and detailed notes of their consultations’. 

It said: ‘Without the evidence of a clear and contemporaneous note of the consultation to substantiate the doctor’s version of events, such claims are often difficult to defend – this is the case even when a doctor is adamant they would have followed their usual and routine practice which is deemed not to be negligent. 

‘It is also imperative that doctors ensure their patients understand the advice they are being given and that any patient’s questions and answers given are recorded.’

Medical professionals on Twitter called for the decision to be overturned, and showed their support for Dr Mitchell with the hashtag ‘#IAmPhilipMitchell’.

The Doctor’s Association UK said it was ‘really concerned’ about the case’s outcome and are ‘actively looking now at how we can support’ Dr Mitchell.

In September, the Government announced that folic acid will be added to flour in the UK in a bid to avoid around 200 spinal conditions in babies each year.

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READERS' COMMENTS [33]

Douglas Callow 2 December, 2021 3:59 pm

This is frankly outrageous

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Dr N 2 December, 2021 4:37 pm

Hence we now all need 30minute appointments.

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Sam Tapsell 2 December, 2021 5:06 pm

May turn out positive. I think most people would view this as a “lottery win” based on heresay, which undermines trust in the legal process.
Could lead to legal reform…

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Dr N 2 December, 2021 5:58 pm

How many doctors have committed suicide because they weren’t fully told in medical school about how totally impossible this job is. Its 30 years since I qualified perhaps I should sue them.

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Just My Opinion 2 December, 2021 6:08 pm

Unbelievable.
He actually documented ‘adv folate’ yet still was found at fault????
This needs to go to appeal.

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Alexander Wilson 2 December, 2021 6:28 pm

Dr Mitchell, if you are reading this, my thoughts are with you. I don’t think i could cope with this nonsense if i was the GP in question.

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Richard Greenway 2 December, 2021 7:23 pm

Dr Mitchell -I feel your pain. It could be any of us. We give advice in good faith, as you clearly did. The doctor was not responsible for this condition in any way. This is a good case for no blame compensation awards as per New Zealand.

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Some" Bloke 2 December, 2021 8:04 pm

They see us as cash cows. That’s all. Nothing personal.
Practicing medicine in this country has just become a lot more complicated.

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Slobber Dog 2 December, 2021 8:04 pm

I thought this was fake news at first
Her particular condition is not related to folate deficiency.
This ‘judge’ needs to re-examine the facts, and apologise for his error.

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Noha Gawargeos 2 December, 2021 8:18 pm

This case reminds me of Bowa-Garba. You do your best but blamed regardless. I think this will have far reaching consequences for all of us and if we just leave it then any one of us would be next. I wonder if there is something we could do as a group.

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Concerned GP 2 December, 2021 9:34 pm

Agree with all above; it’s beyond belief and I just feel for Dr Mitchell. Please can Pulse advise if there are funding efforts going on regarding an appeal to this terrible decision? We need to show solidarity and stand up to what is essentially a witch hunt. Bottom line is that this could be ANY of us.

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John Clements 3 December, 2021 8:52 am

The profession should respond and demand 30 minute consultation to give us chance to advise and properly record every possible negative. This is clearly what the public want

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Kevlar Cardie 3 December, 2021 10:28 am

“Hand grenades in the hands of small children may be unsafe.”

“Don’t eat yellow snow.”

“Wipe your bum after a poo.”

Good grief.

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Mark Howson 3 December, 2021 10:37 am

This is confusing in two levels.
1 the risk of LMMM is not altered by use of Folic acid.
2 I understand an argument used was if the patient had understood the need for folic acid she would have wired a month and then this person would not have been born but another hopefully healthy child would have. So this person would have had no life.
Both of these open up a can of worms. Rationally this will be overturned at appeal unless it is a Memo 618 matter.

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Dylan Summers 3 December, 2021 10:51 am

Mad. But luckily these days few people would be offered a GP appointment for pre-conception counselling so shouldn’t arise again.

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Patrufini Duffy 3 December, 2021 1:04 pm

Another comment taken down.
Made in Britain.
I agree Alison and Dylan – it seems that you are autonomous to become pregnant (in the most part), but dis-empowered to take further responsibility beyond that single point. It was someone else’s fault. You cannot root-cause analysis this. Nor does folic acid prevent spina bifida. Nowadays you can have a baby – then blame everyone for the next 25 years when things go wrong. Never seen the alcohol or drug industry ever go down. Is it not Public Health England you should be suing? – perhaps they didn’t put up enough posters or adverts on the news? Hopefully in the future they can just sue the NHS website and other million websites for information that wasn’t “given on a plate”.

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Cameron Wilson 3 December, 2021 2:42 pm

Wtf! Hopefully my comments were taken down to ensure a successful appeal!! Still think that the legal professions influence on medical practice needs addressing pronto!!

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Jonathan Heatley 3 December, 2021 4:20 pm

Dr Mitchell there are many thousands of us GPs absolutely horrified at this and thinking it could be me next. I am being pilloried for letting my dying patients have my home phone no. Apparently it is against guidelines and breaking guidelines is the new trendy sin, so I am being investigated. The public will reap what they sow.

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Nigel Dickson 3 December, 2021 4:39 pm

Obviously I feel sorry for the poor woman with her spina bifida, but the last person responsible for her physical disability was her mothers GP. The judges ruling in this case is just plane silly, who says this woman’s spina bifida was caused by her mother’s folate deficiency, is there any evidence the mother had folate deficiency at time she got pregnant? How did GPs defence organisation allow Judge to come to this silly conclusion? Did the GPs defence organisation not call expert witnesses to support the GPs case. Sounds yet just another defence organisation pay out. Hopefully they will appeal rather than handing over few millions needlessly. There are lots of other more likely possible causes for this poor woman’s spina bifida – why pick on the least likely the GP as the cause?

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Doc Getmeout 3 December, 2021 6:45 pm

To this judge – you “cannot be serious” in your judgement (a very personal opinion)!

To Dr M as in all the comments above = the GP community is behind you.

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Nicholas Sharvill 3 December, 2021 8:08 pm

this is so sad, and probably wrong. What about the responsibilities of Health education England , public health England and the Education system,.Plus the Government for not supplementing flour with folate like a lot of the world.
I have commented elsewhere that many young women are unaware of folate supplements just as most of the population seem unaware of vit d supplements. somewhere along the line personal responsibility perhaps needs to be considered and that all people born with handicaps should be supported not just those with a legal claim (recent £20m awards to cover lifelong private care for one young person and now calls that those with Downs (but not other liability) get guaranteed care. )
The evidence is clear that nobody rememberers at least 50 % of what is said so to judge one persons memory against another routine care of advising folate seems not to fit the balance or probabilities. Children also can get spina bifida if mothers do take supplements.

Ian Jacobs 4 December, 2021 12:03 am

Reply to Dylan Summers comment.

You have missed the point. The implications of this judgement will be applicable to a large array of clinical situations that Dr’s and GP’s frequently find themselves dealing with.

To mention another aspect of this case : would a midwife have been expected to ensure the mother understood the risk of not taking folate supplements ? and would they too have been found liable if the scenario had involved a MW rather than a Dr/GP ?

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Ian Jacobs 4 December, 2021 12:13 am

Interesting that expert opinions were not allowed in this case .

How do you prove 100% that any development or outcome is cause and effect ? Life is very rarely black and white – more likely infinite varieties of grey.

How does anyone know if this ( very rare ) defect associated with spina bifida would definitely have been prevented if the mother had started pre-conceptual folic acid supplementation and continued it for at least up to the 13th week after conception.

It strikes me as strange that the mother decided to stop the pill prior to requesting an appointment to discuss Q’s related and relevant to conception . How long did she wait between making and having the appt. with her GP ?

Decorum Est 4 December, 2021 1:44 am

‘Toombes case’ demonstrates the gulf that has developed between sensible and scientific medical practice and the outlandish humanities (non or anti-scientific education) and ridiculous opinions of lawyers like Judge Coe.
Look on and Weep!

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Decorum Est 4 December, 2021 1:49 am

‘Toombes case’ will join ‘Bawa Garba case’ in a long line of inequities.

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Hallawa Piyatissa 4 December, 2021 5:49 am

Unbelievable. I feel so sad for Dr. Mitchell and think he should appeal. This is much worse than Dr. Bawa Garba case. It would be interesting to see responses and actions from BMA, RCGP and medical defence unions.

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Doc Getmeout 4 December, 2021 8:41 am

It said: ‘Without the evidence of a clear and contemporaneous note of the consultation to substantiate the doctor’s version of events, such claims are often difficult to defend –

THE CASE FOR SEEING PATIENTS FOR LONGER TIME(15MINS OR MORE) WITH AMPLE TIME TO MAKE DETAIL NOTES IS YOUR ONLY PROTECTION.

We need our leaders to campaign for much longer standard appointments and less of conveyor belt consultations.
BMA/RCGP needs this case as lesson to learn and change these 10mins appt as standard!!!

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John Glasspool 4 December, 2021 9:55 am

1. It would appear one will need to write an essay for every consultation.
2. If this was a civil case, then the standard of proof is “Balance of probablilties”, not “Beyond reasonable doubt”.

P B 4 December, 2021 11:47 am

I started in general practice in 2004 and I dont recall it being clear at the time that PRE conception folic acid was a benefit my awareness of this came in a few years later. It would seem from my (quick) look at this that the issue hinged around the mum getting pregnant in a folate deficient state. Looking at cochrane review on this2015 ( referenced from NICE CKS) this looks back at earlier studies but look even in 2000 there were clinical trials looking at folic acid vs PLACEBO so it presumably wasn’t that clear even then if this got ethical approval. This case happened around 2001?
.Multicentric study of efficacy of periconceptional folic acid containing vitamin supplementation in prevention of open neural tube defects from India
Central Technical Co-ordinating Unit, ICMRCentral Technical Co-ordinating Unit, ICMR; Anonymous. Indian Journal of Medical Research; New Delhi Vol. 112, (Dec 2000): 206-11.

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John Glasspool 5 December, 2021 1:51 pm

One hopes there will be an appeal.

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Kevlar Cardie 6 December, 2021 11:56 am

Sad to see that the link I posted to the Monty Python Live at the Hollywood Bowl sketch of Eric Idle and Michael Palin as two High Court Judges has been taken down.

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Humayra Abedin 15 January, 2022 10:33 am

This is bizarre, outrageous on another level. GPs should try and do something about it. Is there a platform to raise voice against it cumulatively?

Jamal Hussain 1 May, 2022 9:20 am

It’s impossible to practise safely in 10 mins or 15 minutes appointments in the UK. The required level of note keeping will take 10 mins. Then the patients want to discuss more than one problem. GPs should give serious consideration to moving to countries who have a more common sense legal approach like Australia. Is it worth risking one’s livelihood by staying in the UK.

I found the following little gem from 2006 from the Maternal and child health Journal.

Table 1

Suggestions for the clinician during routine or periodic health assessments to optimize possible future pregnancy outcomes for all reproductively capable women
• Determine if the woman suffers from any undiagnosed or uncontrolled medical problems. If she does, provide recommendations for treatment of these conditions and when it would be best to attempt pregnancy.
Make sure the patient is aware of any associations between the medical condition(s) and medications(s) she is taking and their impact on pregnancy outcomes.
Ask the woman about her reproductive intentions at every visit, ascertain what her risk of an unplanned pregnancy may be; for women not actively seeking to become pregnant, discuss her current contraceptive method and any concerns or problems she may be having with it.
Review the woman’s family history—including new births among family members—annually as things change over time. Discuss any familial conditions that may herald an increased risk of adverse pregnancy outcome for the woman.
Discuss the significance that nutrition can have on maternal fetal outcomes,e.g., the impact of 0.4 mg folic acid per day on neural tube defects in women with no family or previous history of a neural tube defect), the need to avoid excessive vitamin usage, especially vitamins A and D, and the additional measures women on restricted diets may need to take to optimize their health and the health of the developing fetus.
Review the patient’s social behaviors or lifestyle patterns—such as smoking, alcohol, or other substance use or abuse—that may affect pregnancy adversely and offer treatment options.
Ascertain the immunity status of woman to rubella, hepatitis, and varicella. Ensure she is up to date on immunizations.

According to this little gem this discussion needs to be had “regularly”when one sees a woman of child bearing age.